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United Kingdom House of Lords Decisions
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SCOTTISH_HoL_JURY_COURT
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(1839) 1 Mac&Rob 220
REPORTS OF CASES UPON APPEALS AND WRITS OF ERROR, AND QUESTIONS OF PEERAGE, DECIDED BY THE HOUSE OF LORDS, Session of Parliament 1839, 2 & 3 VICTORIA.
(Appeal from the Court of Session, Scotland.)
1st Division.
(No. 9.)
v.
[
Counsel:
Sir F. Pollock —
Pemberton —
R. Bell.
Attorney General (Campbell) —
Knight Bruce —
Whigham.
1
Subject_Patronage — Church — Jurisdiction — Acquiescence. —
A patron granted a presentation to a vacant church and parish in favour of a presentee, who accepted of it; the presbytery of the bounds found that they must proceed to fill up the vacancy, in terms of an act of the general assembly 31st May 1834, entitled “Overture and Interim Act on Calls,” and the relative act of assembly, 2d June 1834, entitled “Overture with Regulations for carrying the above Act into effect,” in which sentence the patron acquiesced; the presbytery further “did, in pursuance of the first regulation of the act of assembly anent calls, in so far sustain the presentation as to find themselves prepared to appoint a day for moderating in a call to the presentee;” the call was signed by three individuals; no special objections were stated against the presentee, but a veto or dissent was lodged by a large majority of the male heads of families, members of the congregation, and in full communion with the church. The patron and presentee took appeals to the superior church courts against the admission of those dissents; but, on the ground exclusively that the provisions of the acts of assembly had not been adhered to, these appeals
_________________ Footnote _________________
1 Rep. 16 D. B. M. 661., and see “Report of Auchterarder Cause,” by Charles Robertson, Esq., Advocate, 2 vols. Edinburgh, 1838.
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At a meeting of the general assembly of the kirk of Scotland, held on 31st May 1834, it was declared and enacted, among other things, “that it shall be an instruction to presbyteries, that if, at the moderating in a call to a Vacant pastoral charge, the major part of the male heads of families, members of the vacant congregation and in full communion with the church, shall disapprove of the person in whose favour the call is proposed to be moderated in, such disapproval shall be deemed sufficient ground for the presbytery rejecting such person, and that he shall be rejected accordingly, and due notice thereof forthwith given to all concerned.” Regulations were framed at a meeting of assembly on 2d June 1834, and transmitted as an interim act to presbyteries for their approval.
The church and parish of Auchterarder became vacant by the death of the Rev. Charles Stewart, on 31st August 1834.
Upon the 16th September 1834 the Earl of Kinnoull, the undoubted patron of the said church and parish, granted a presentation in favour of the Rev. Robert Young, a duly qualified licentiate of the church of Scotland.
At a meeting of the presbytery of Auchterarder, held at Trinity Gask on the 14th of October 1834, Mr. Robert Hope Moncrieff, writer in Perth, on the part of the Earl of Kinnoull, laid on the table of the presbytery the said presentation, duly executed, his lordship in the usual form thereby nominating and appointing Mr. Young to be minister of the said church and parish, and requiring the reverend the moderator and presbytery of Auchterarder to take trial of the qualification, literature, good life, and conversation of the said
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Statement.
There were produced to the presbytery by the said Robert Hope Moncrieff a certificate that the Earl of Kinnoull had, as patron, qualified himself to exercise his right of patronage by taking the requisite oaths to government; a letter of acceptance, by the Rev. Robert Young, of the presentation; a certificate of his having qualified himself to accept of and hold the said presentation, by taking the usual oaths to government; also the usual parochial certificate; and a certificate signed by five ministers of the presbytery of Dundee, that the pursuer, the Rev. Robert Young, was a duly qualified licentiate of the church of Scotland, having received his licence from the said presbytery. There was likewise produced an engagement to exhibit an extract of the pursuer's licence as soon as a meeting of the presbytery of Dundee should be held. The deed of presentation and relative papers having been read, they were appointed to lie on the table till next meeting of presbytery.
At a meeting of the presbytery, which was held at Auchterarder on the 27th of October 1834, Mr. Robert Hope Moncrieff, on the part of the Earl of Kinnoull, produced an extract of the licence of the pursuer, the Rev. Robert Young, as a preacher of the gospel, and testimonial in his favour by the presbytery of Dundee; which having been read, and the presbytery “considering that all the documents usually given in
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At a meeting of the presbytery which was held at Auchterarder on the 2d of December 1834, for the purpose of moderating in a call to the pursuer, there was produced and read a call, subscribed in his favour by three of the parishioners, to be minister of the said church and parish; whereupon the presbytery, in terms of the said interim act of assembly, afforded an opportunity to the heads of families, members of the congregation and in communion with the church, by
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At another meeting of the presbytery, which was held at Auchterarder on the 16th of December 1834, in respect that none of the persons who had dissented from the settlement of Mr. Young appeared to withdraw their dissents, the presbytery again found “that there is a majority of the persons on the roll still dissenting.”
These proceedings having been submitted to the review of the superior church courts, viz., the synod of Perth and Stirling and the general assembly, and a remit having been made to the presbytery to proceed in terms of “the interim act of the then last general assembly,” at a meeting of the presbytery held at Auchterarder on the 7th of July 1835, the presbytery,
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No special objections were stated against the presentee's qualification or settlement; the presbytery nevertheless did not take him upon trials, and pronounce judgment on his qualifications as presentee foresaid; but refused to do so, and to admit and receive him as minister of the said church and parish.
Thereafter a summons of declarator was brought in the Court of Session by the Earl of Kinnoull, as patron, and Mr. Young, as the presentee of the parish of Auchterarder, which summons (as amended) libelled on the statutes 1567, c. 7.; 1592, c. 116. and 117.; 1690, c.23.; 10 Anne c. 12. (1712); and set forth the above proceedings, and refusal of the presbytery to induct the presentee. It then proceeded:—
“That the foresaid judgments or deliverances of the said presbytery, of date 2d December 1834 and 7th July 1835, were ultra vires illegal and unwarrantable, in so far as that though by the laws and statutes before libelled the presbytery were bound and astricted to make trial of the qualifications of the pursuer, Robert Young, as presentee to the church and parish of Auchterarder, and were not entitled to delegate to or devolve that duty on third parties, or to denude and abandon their right and duty as a church court, to judge of
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and decide upon the qualifications and fitness of the presentee for the pastoral office and charge; and after examination by said presbytery, if the pursuer, the said Robert Young, as presentee foresaid, was found to be duly qualified, the said presbytery were bound and astricted as aforesaid to have admitted and inducted him into the office of minister of the church and parish of Auchterarder; nevertheless, though the pursuer, the said Robert Young, is duly qualified as a licentiate of the church of Scotland and presentee foresaid, as well as in all other respects, to be received and admitted minister of the church and parish of Auchterarder, and though no objections have been stated against his qualifications, the presbytery not only refused, and continued to refuse, to take the pursuer upon trials, and to pronounce judgment on his qualifications as presentee, or to admit and receive him as minister of the church and parish of Auchterarder, but have by their sentence rejected him as presentee to the said church and parish without trial, without taking cognizance of his qualifications as presentee, and expressly on the ground that they cannot and ought not to do so in respect of a veto of the parishioners. In all which respects the said presbytery, and the individual members thereof, have exceeded the powers conferred on them by law, and acted illegally, in violation of their duty and of the laws and statutes libelled, and that to the serious prejudice of the patrimonial rights of the pursuers and although the pursuers, as patron and presentee foresaid, have often desired and required the said presbytery and the present individual members Page: 228↓
thereof to discharge their duty in terms of law and the statutes libelled, by proceeding with the trials, admission, and final settlement of the pursuer, the said Robert Young, as minister of the church and parish of Auchterarder, yet they illegally, contumaciously, and in violation of their duty, and to the serious injury and prejudice of the patrimonial rights of the pursuers, refused and continue to refuse so to do.”
The principal conclusion was, “Therefore it ought and should be found and declared, by decree of the Lords of our Council and Session, that the pursuer, the said Robert Young, has been legally, validly, and effectually presented to the church and parish of Auchterarder: That the presbytery of Auchterarder, and the individual members thereof, as the only legal and competent court to that effect by law constituted, were bound and astricted to make trial of the qualifications of the pursuer, and are still bound so to do; and if in their judgment, after due trial and examination, the pursuer is found qualified, the said presbytery are bound and astricted to receive and admit the pursuer as minister of the church and parish of Auchterarder according to law: That the rejection of the pursuer by the said presbytery as presentee foresaid, without making trial of his qualifications in competent and legal form, and without any objections having been stated to his qualifications, or against his admission as minister of the church and parish of Auchterarder, and expressly on the ground that the said presbytery cannot and ought not to do so in respect of a veto of the parishioners, was illegal, and injurious to the patrimonial rights of
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The summons also contained other conclusions, the first of which was directed against the presbytery and the collector of the ministers widows fund, for decree ordaining them not to molest the said Robert Young in the possession and enjoyment of the stipend, manse, and glebe, and whole other emoluments belonging and pertaining to the said church and parish.
The next conclusion was directed against the heritors, for decree against them to pay their respective shares of the stipend to the said Robert Young during his life, and to perform and fulfil all the other obligations incumbent upon them, as heritors, to him, as legally, validly, and effectually presented to the said church and parish, or otherwise to declare that the Earl of Kinnoull had legally and validly and effectually exercised his right as patron; and that the said presbytery of Auchterarder, and the individual members thereof, had illegally and in violation of their duty and of the several laws and statutes before libelled, refused to make trial of the qualifications of the said presentee, but had illegally and in violation of their duty and of the laws and statutes libelled as aforesaid, rejected the said Robert Young as presentee; and therefore that the pursuer, the Earl of Kinnoull, had right to and was entitled to receive and retain the whole stipend and emoluments of and pertaining to the said church and parish of Auchterarder from the date of citation hereto, and in all time coming during the life of the said Robert Young; and it being so found and declared, the presbytery and collector of the widows fund, and all others, should be ordained to desist from molesting the pursuer, the said Thomas Robert
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The presbytery in their defences admitted Lord Kinnoull's right of patronage and the validity of the presentation, but objected to the jurisdiction of the civil court to take cognizance of and decide on proceedings of a church court, which, according to the enactments of the superior church judicatory as established by law, and by virtue of which the presbytery had acted, were warrantable and regular.
It was agreed that the discussion should be confined to the first or principal declaratory conclusion. A record was made up and closed.
The question at issue was raised by the following statement in the condescendence for the pursuers:—Art. XI.—“That the foresaid sentence” (that is to say, the sentence of the presbytery of 7th July 1835,) “whereby the presbytery rejected the Rev. Robert Young, pursuer, as presentee to the church and parish of Auchterarder, proceeded exclusively on the ground of the veto or dissents exercised by the alleged majority of heads of families or parishioners of Auchterarder.”
The answer made to that statement by the presbytery was, Ans. XI.—“Admitted.”
The Lord Ordinary reported the cause on Cases, and by order of the Lords of the First Division a hearing in presence took place before the whole
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Thereafter, upon hearing counsel for the parties and before pronouncing judgment, the Court, 8th March 1838, allowed the following minutes to be lodged: —
“ Minute for the Reverend the Presbytery of Auchterarder.
Mr. Solicitor General for the presbytery of Auchterarder, of consent of the Dean of the Faculty, for the pursuers, craved the Court to allow the following plea in defence to be added to the record:—
The pursuers are barred by acquiescence from objecting to the proceedings of the presbytery of Auchterarder and pleading that the same were illegal. (Signed) And. Rutherfurd.
Edinburgh, 8th March 1838.—The Lords, having heard the above minute of consent of parties, allow the above plea in defence to be added to the record. (Signed 10th March.)
(Signed) C. Hope, I.P.D.”
“ Minute in answer for the Pursuers.
Before the Court proceeded to give judgment and pronounce their interlocutor the Dean of Faculty, on the part of the pursuers, stated that he did not and never had objected to the Court entertaining and considering any plea raised by the defenders in argument, either as to the alleged personal objection to the action founded on acquiescence stated in the proceedings of the presbytery under the veto act, or as to the alleged objection to the sufficiency of the summons. (Signed) John Hope.”
The following interlocutor was thereupon pronounced:—
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“Edinburgh, 8th March 1838.—The Lords of the First Division having considered the Cases for the Earl of Kinnoull and the Reverend Robert Young, and for the presbytery of Auchterarder, with the record and productions, and additional plea in defence admitted to the record, and heard counsel for the said parties at great length in presence of the Judges of the Second Division and Lords Ordinary, and having heard the opinions of the said judges, they, in terms of the opinions of the majority of the judges, repel the objections to the jurisdiction of the Court and to the competency of the action, as directed against the presbytery: Further, repel the plea in defence of acquiescence: Find, that the Earl of Kinnoull has legally, validly, and effectually exercised his right as patron of the church and parish of Auchterarder, by presenting the pursuer, the said Robert Young, to the said church and parish: Find, that the defenders, the presbytery of Auchterarder, did refuse, and continue to refuse, to take trial of the qualifications of the said Robert Young, and have rejected him as presentee to the said church and parish on the sole ground (as they admit on the record) that a majority of the male heads of families, communicants in the said parish, have dissented, without any reason assigned, from his admission as minister: Find, that the said presbytery in so doing have acted to the hurt and prejudice of the said pursuers, illegally and in violation of their duty, and contrary to the provisions of certain statutes libelled on, and in particular contrary to the provisions of the statute of 10 Anne, c. 12, intituled, An act to restore patrons to their ancient rights of presenting
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ministers to the churches vacant in that part of Great Britain called Scotland: In so far repel the defences stated on the part of the presbytery, and decern and declare accordingly, and allow the above decree to go out and be extracted as an interim decree; and, with these findings and declarations, remit the process to the Lord Ordinary, to proceed further therein as he shall see just. (Signed 10th March.) (Signed) C. Hope, I.P.D.”
The presbytery appealed.
Appellants Argument.
Appellants.—Two questions had to be considered: (1.) whether the general assembly were competent to pass, cum effectu, the interim act of 2d June 1834? and (2.) whether, supposing that such interim act was alleged to be ultra vires of the general assembly, the Court of Session had power to entertain the question of its legality? Now, all that related to the call, trial, induction, or collation of ministers was matter purely of ecclesiastical regulation, and cognizable only by the ecclesiastical courts. The acts of the different assemblies from 1560 downwards proved that all such matters as now sanctioned by the laws and daily practice of Scotland were so determined on by the assembly in exercise of its strictly ecclesiastical powers. The propriety or wisdom of the different acts of assembly did not come into question; the proper inquiry being, whether the assembly had the right. Now, the usage or actual exercise of power afforded the strongest confirmation of its legality. The constitution of the kirk of Scotland, as sanctioned and approved by acts of parliament, afforded no trace of any authority in the civil court to overrule
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With regard to the respective powers of the ecclesiastical Court and the Court of Session, it seemed to have been assumed that the Court of Session had an immemorial right to interfere in all matters affecting the rights of individuals; but this could not be, as that Court was established and its powers defined by act of parliament, which confined its proceedings to civil actions, and gave no jurisdiction in matters ecclesiastical. It could not be shown that ecclesiastical jurisdiction had been given by any subsequent statute. Besides the Court of Session or Supreme Civil Court, Scotland had also its Court of Justiciary or Supreme Criminal Judicatory, as well as its Church Courts, consisting of the General Assembly of the Kirk, and its subordinate tribunals, so that there were three separate coexistent though independent jurisdictions. The kirk, as reformed, succeeded to the whole jurisdiction exercised by the pope and bishops; and that was now vested in the proper Church Courts. The Commissary Court, now merged in the Court of Session, took cognizance of certain cases which might be considered partly civil and partly ecclesiastical; but no argument could be raised from that fact.
The recognition of the ecclesiastical jurisdiction, exercised by its proper courts, was proved by abundant statutory authority; also by the text writers, excepting Bankton
1, (the value of whose authority had been
_________________ Footnote _________________
1
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And even although the act of assembly complained of might be ultra vires, still, as was shown by the authorities, well explained by Lord Cockburn below, the Court of Session had no power to direct an inquiry by civil process into the legality or illegality of the act, for it is a civil court merely, possessing only civil jurisdiction, as given by statute; and where it possessed jurisdiction in certain ecclesiastical matters it was only where such jurisdiction was given by statute.
Did the question here involve matter of civil or ecclesiastical jurisdiction? The call and ordination of a minister to discharge the duties of the cure of a parish could not be considered otherwise than as ecclesiastical matter. There was no such thing in Scotland as ministerium vacuum; for there a minister is licensed, and when ordained is set apart to a particular cure. Then the call is no mere matter of form. No minister could be admitted unless there had been a moderation of the call, which was, therefore, a necessary as well as a substantial part of the ecclesiastical procedure in the settlement of a minister. Upon the record as between these parties there was no question
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Respondents Argument.
Respondents.—They now complained of a civil injury sustained through the refusal to admit a presentee duly licensed, and not on the score of qualification, as hitherto understood, but on the sole pretext of a veto or dissent, which went to a complete denial of the right of the patron. The important question then was, whether the patron and presentee had any remedy for the latter having been so illegally prevented from being admitted to the benefice. The appellants do not say there is any remedy; they allow that the present mode adopted was the proper remedy, or there was none; but said, the Court of Session had no jurisdiction,
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Generally, the sound and obvious view was that up to the year 1834 it was not pretended that there was any law entitling presbyteries to refuse to take on trial presentees who, if qualified, were entitled to be ordained and inducted into the cure of the parish. Had the law before 1834 sanctioned exclusion on the score of dissent, there would have been no necessity for, and there would in fact have been no ecclesiastical legislation attempted on the subject. And the necessity of such legislation through the want of any such preexisting right of dissent without reason, was evident from the notorious fact that the framers of the scheme did not at first agree as to the class of persons in whom such right of dissent, without reason assigned, should be placed; so that it must have been not in its administrative capacity as an ecclesiastical court, but as a legislative body, that the assembly acted in 1834; and it now sought as a court to interpret and enforce the law, not as sanctioned by the legislature and explained by the judicatories of the land, whether civil or ecclesiastical, but the law as confessedly made or altered by the assembly itself. Thus there was no conflict, and could be none betwixt the two courts, considered strictly as courts; and no conflict of decisions, so long as both courts confined their proceedings within proper judicial bounds.
The stat. 1592, c., 16, establishing presbytery, gives
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The interim act of the general assembly 1834 in the principle of it necessarily raises and disposes of questions of civil right, the determination of which belonged to and was within the jurisdiction and competence of the civil court; for the veto or right of peremptory rejection thereby conferred on the male heads of families in a parish was altogether distinct and separate from a call by the congregation, and unauthorized either by the nature of a call, or by any of the enactments of the church in regard to calls; and accordingly in this case the moderation of the call was over before the dissents or veto were given or asked for.
A call was never, during any period in the history of the kirk of Scotland prior to 1690, in which the right of patronage was recognized by law, admitted or acted upon as a means of controlling the right of patronage,
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A call by the congregation, in the sense of warranting peremptory rejection by the male heads of families without reasons assigned, is inconsistent with the rights of lay patronage, as part and parcel of the law of the established kirk of Scotland; and it had, by a series of adjudged cases in the Supreme Ecclesiastical Court, been determined that a call is of the nature of an invitation, which it is desirable the congregation should give for the encouragement of their pastor, and which in practice they are asked to give, but which is not part of ordinary vocation, (that is, of election or of title,) as defined in the book of discipline, nor anywise
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Whether the right of veto or of peremptory rejection, which is given to the male heads of families by the interim act of the general assembly of 1834 and relative regulations, be civil or ecclesiastical, it is wholly beyond the power of the church to confer on the members of congregation, or on any section of them, such power of rejection. The right of nomination to the office of minister of a church and parish is by law vested in the patron, subject to no approval or rejection by the people or congregation, but solely to the power of collation in the church courts, to try and adjudge the qualifications of the presentee.
Assuming that the general assembly had power as a legislative body to make regulations as to the qualifications of presentees, they were not entitled, consistently with the statutes founded on by the respondents, to enact and require that the presentee should be acceptable to the people, as the condition of his being taken upon trials and inducted to the office of minister of a particular church and parish, acceptableness not being a quality in the presentee at all, either absolutely and with reference to the duties of a minister in general' or relatively as regards the discharge of those duties in the particular parish to which he is presented. Acceptableness per se is not a matter within the province of collation, though the collators may inquire whether the want of it has arisen from a good and sufficient cause. If they give to it any other effect, they delegate to the male heads of families the office which was delegated to themselves, they substitute the choice of the male heads of families for the choice of the patron, and
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The exercise of the right of nomination to the office of minister of a church and parish in Scotland, as well as to the benefice, is reserved and secured by statutes to lay patrons as a condition on the establishment of the national church of Scotland. And when the church courts jure devoluto nominate or call an individual to the office, it is by the exercise of the right of presentation which was in the patron, but which he had failed to exercise, and which in consequence is transferred to the church by a statutory devolution; and the right is then exercised by a deed of presentation flowing from the right of patronage as much as when it is exercised by a lay patron.
The power to give collation upon presentations, that is to say, of examining and admitting ministers to parishes, which is vested in the kirk of Scotland as a national establishment, is statutory in its origin, and defined and limited by statute; and but for the enactments of civil statutes the presentation would have filled the office, the act of ordination alone remaining to the church, but without any power of rejection of an unqualified person. The state conferred the power and imposed the duty of collation on the church, as a check upon the exercise of the right to present to the office, and as the only check consistent with the fair and free exercise of the right of patronage.
The power conferred and the duty imposed on the judicatories of the church by the statutes to judge of the qualifications of presentees, and to decide on objections stated to their qualifications, was one of the leading principles of presbytery; and the power and duty could
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The church of Scotland established at the reformation was an entirely new ecclesiastical establishment. The state abolished the former established church, and all its powers, authority, and jurisdiction, and then by degrees, and by enacting special statutes to that effect, it formed and adopted another establishment. These statutes are, in Scotland, the sole origin and foundation of the national church as an establishment. The national church received from these statutes certain powers within which it must be confined, while at the same time certain duties were imposed in regard to the right of presentation. Those duties were again confirmed and imposed by the act of Queen Anne, and the established church cannot refuse to discharge them without its presbyteries committing a civil wrong, which is cognizable by the Supreme Civil Court. The church was limited, restrained, and confined as to its own powers and functions in regard to all the matters which formed the subject of statutory enactment: Hence the position recently broached on the part of some of the presbyteries of the church of Scotland,—that it is in truth the old church of Scotland, (that is, the popish church,) only reformed from its errors,—is as inconsistent with statute as it is absurd and extravagant, when the jurisdiction
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A claim for an inherent power of legislation by an established church so as to destroy, restrain, or impair any civil rights, is inconsistent with any sound constitutional principle applicable to the connexion between the state and established church, and most dangerous to the rights and true liberties of the people of Scotland. And when any such claim is brought forward, it is the duty and province of the Supreme Civil Court to decide on the validity of such pretensions, and to enforce civil rights, and at the same time to restrain all bodies in the country within the limits assigned by law, so as to preserve the civil rights of others: this is clear upon the authorities. There was none to show that the church had the supreme legislative power; but on the contrary, there was authority that if the church courts exceeded their powers they were amenable to the law of the land. Where secular rights are concerned the Court of Session would interfere.
If the analogy of the law of England be resorted to, it would be found that that law was entirely adverse to the pleas of the appellants.
The arguments of counsel having been concluded (23d March 1839),—
Ld. Chancellor's Speech.
23d March 1839.
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Ld. Brougham's Speech.
My Lords, that being the opinion of my noble and learned friend and myself, I shall not at all enter into the merits of the question at present, farther than to say that I regard the question as one of very great importance, and that I do not see, in any view I can take of the case, any conflict whatever between the rights of patrons on the one hand, and of the church on the other, or between the church as an ecclesiastical or spiritual body on the one hand, and the flocks on the other,—hardly any conflict between the temporal and the spiritual courts on either side; but that I regard the interests, the views, and the peace of the whole community, the church and the laity, the courts spiritual and temporal, as all bound up together, and that in the
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My Lords, it greatly increases the difficulty of this case that not only is there some conflict of authority,—that not only is there very great discrepancy of opinion among some of the most learned and most able judges, who have dealt with the question on either side in the Court below; but that we are in this position; I say it particularly with reference to what last fell from the very able and learned counsel who has just addressed your Lordships in his most able, singularly able reply, where he alluded to a legislative measure; and something was said upon that also in the Court below, as well as on the other side of the bar by the counsel for the respondent. Now, my Lords, as the peace of the church and of the community is first of all to be considered, I am of this clear opinion, as at present advised, that it will be much better consulted by a judicial determination of the case than by a legislative measure,—that it will be much better and safer dealt with by having a declaration from the high authority of this highest court of law, of what the law is and what it always has been, and what the rights of all parties are under the law as it is and always has been established in Scotland, than by interposing with the strong hand of the supreme legislative power, and by an act of that supreme power making new a law to regulate the conflicting or supposed conflicting rights of the parties. If there is any disposition on any part to fall out with the ultimate decision I am quite sure
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My Lords, it is quite unnecessary to state,—what it will be satisfactory to the people of Scotland to know, and it is for that reason I state it,—that never was a case of importance argued with greater resources and learning and ability than the case we have heard argued at your Lordships bar.
I suppose that the General Assembly meet on the 13th of May.
Mr. Whigham.—The 15th, my Lord.
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Judgment deferred.
A circumstance occurs which might at first sight seem rather to relieve me from some part of this anxiety, but which, nevertheless, is in itself a source of considerable uneasiness—a circumstance common to myself and to my noble and learned friend, who is about to give his opinion upon this case. After an unremitting attention for five days to the able and learned arguments on both sides of the bar, I deemed it my duty equally to examine the reasons adduced in the ample discussion which the case received from the Scottish bench, having access to their opinions and their arguments in a shape which it were to be wished we had in all cases of any importance, and the want of
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Now it does so happen that in a case which has undergone so much discussion below, which has given rise to so great divisions among the judges below, which has been argued on either side at such length both at the bar and on the bench, both in Scotland and here, it does so happen that I have been with the utmost diligence seeking for difficulties, and found them not; that I have been, with all the power which I could bring to bear upon the investigation, wholly unable, and am to this hour unable to discover wherein the very great difficulty consists; and that I have come to my conclusion without any sort of doubt whatsoever resting upon that conclusion, or upon the grounds whereupon it is formed.
Now although this at first sight, as I have already said, may seem to relieve me from the anxiety natural to the position of one who is to decide upon an appeal such as this; yet in another view it rather increases that uneasiness, by making me dread lest matters which have
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My Lords, I say all this without the slightest disrespect to that most learned and venerable tribunal which has judged upon it below; because I know full well that it is of the nature of men, and the more so the more learned, and subtle, and able they are, that in proportion as a case coming before them is of great importance, and occupies the minds of the people by whom they are surrounded,—it is of the nature of men, and even of judges in such circumstances sometimes, rather to overdo the matter; and perhaps it is the safest
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And now, before proceeding to state the grounds upon which, in my opinion, there can be no doubt whatever that the Court below have come to a right conclusion, and that their judgment should be affirmed here by your Lordships, I will take notice of a topic which we have heard more than once, and in more shapes than one urged at the bar. It was adverted to below; it was adverted to even in the judgments that have been pronounced; and I cannot withdraw from taking notice of it here. In reference to the great anxiety which this case excites in Scotland, and to the possible consequences of an affirmance of the judgment, much has been said of the public feeling in two forms, the feeling of the flock and the feeling of the pastor. With respect to the flock, I have no reason whatever to doubt, I am not permitted to doubt, that they will render a respectful obedience to the law of the land: but if I have no reason to doubt of this respecting the laity, how much less dare I question it with respect to the ministers of the gospel? To menace a tribunal with any disrespectful reception of its lawful decrees from the laity of the land is hardly conceivable; but to menace it with any disrespectful reception of a sentence pronounced by the judges of the land, to menace such lawless conduct on the part of the clergy, of the Christian clergy of a Christian church, the church of Scotland, whose head is Christ Himself, is not only indecorous, but it is preposterous, it is monstrous: I will not believe it till I see the fact,—a fact which I hope I shall not live to see, and which I hope no one
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I will now proceed to state the reason upon which I have come to a conclusion in favour of the judgment under appeal. They are short and satisfactory to my mind. They consist in reference to the statute law of the country, and they leave upon my mind no doubt whatever, unless we are to allow niceties drawn from antiquarian lore, subtleties gathered from disputed points of church history, refinements borrowed from the controversies among theologians of past ages and metaphysical distinctions and arguments ab inconvenienti, and misconceived notions with respect to the bounds and limits of jurisdictions to pervert the plain intendment of statute law, that intendment which is to be gathered from the words of the legislature, which is confirmed by the reason of the thing, which is established above all by the manifest purpose of the enactment,
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Now, my Lords, when I go at all, after what I have said, into the historical matter belonging to, or rather, perhaps, brought into and made to encumber this case, and much of which is more curious than useful in the argument, your Lordships will presently perceive it is with a view of helping out the construction to which I am coming, and for no other purpose. I shall, therefore, for a moment look to what was the original interposition of the people in question of presentment and induction into benefices, and then I find that at no time, even when the rights of patronage were the least known, and therefore the worst secured, at no time did the people's share in the operation bear the least resemblance to what is contended for in the present case.
But, first of all, it is certainly convenient and satisfactory to find that we have no dispute whatever here relating to the facts: Lord Kinnoull's undoubted right to the advowson, or the patronage of the living, is clear; his having presented Mr. Robert Young to that living is clear. The presentment having by the presbytery been received within due time is admitted; it having been sustained, as they are pleased to call it, is admitted also. What effect that sustentation has had, or what use or purpose it has served, is another question. The refusal afterwards of the presbytery to ordain and induct Mr. Young to the living is admitted; and, in the sixth place, the ground of that refusal (and this is most important) is distinctly admitted; it forms the whole subject matter of the controversy, and I shall now call
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“The aforesaid sentence, whereby the presbytery rejected Mr. Robert Young as presentee to the church of the parish of Auchterarder, proceeded exclusively on the ground of the veto,”
—a new word introduced, I apprehend, into the Scottish law; but a translation of it is given in the same sentence,—“on the ground of the veto, or dissent,”—a most important word,—“or dissent exercised by the alleged majority of heads of families or parishioners of Auchterarder.” Such is the allegation. The answer is, “admitted.” Thus, therefore, it is clear that there is raised before your Lordships the question, Have the majority, or the alleged majority (an allegation not traversed) of the heads of families, of any families, the right to exercise a veto or dissent (I prefer the English translation to the Latin original, a dissent)? and is the presbytery bound by that dissent, unaccompanied with any reasons, and not followed by any inquiry on their part into the validity of the causes of dissent, to reject the patron's presentee? In other words, Is the patron's right of presenting subject to the acceptance or refusal, that is, the choice of the congregation? That is the question, and the important question raised before your Lordships; that is to say, is or is not, by the law of Scotland, the right of patronage in the patron, or is it in the patron conjointly and concurrently with and shared by the parish as well as the patron? That is the question raised by force of the word “dissent;” for it is a mere refusal of assent; it is a choice negative exercised by one party after a choice affirmative exercised
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My Lords, I come, therefore, to observe upon what has at different times been the right of the parish or the congregation, even in times when the right of the patron was most feeble and worst ascertained. Let us see what right have they in point of fact, and by practice or usage enjoyed.
Now it is to be observed that before endowments were numerous, when there were very few patrons to present, when all that the church consisted of was a number of congregations, and when the provision for the parson or the priest was feeble as the church itself, when he was paid accidentally, by casual offerings, by various fees from time to time increased by clerical encroachments, but when there was no provision regularly made by formal and substantial endowment, it is clear that the right of patronage could hardly be known; and as the priest must be chosen by somebody, it appears that he was then chosen, not by the congregation who were to be his scholars, not his patrons, but he was chosen by the clergy, by the clerical portion of the church. For your Lordships will find that there was a canon in the year 428 referred to by one of the learned judges, which shows that the election was in the clergy, though with the assent of the congregation. “Plebis,”
1 says the canon, “non est eligere, sed est electioni consentire.” That is, all the function of the people. The clergy chose, the people assented; and this in 493 was extended to bishops; for it is then laid down by another canon, “in electione episcopi populus debet adesse;” just as in the enthronement of the king, which has been
_________________ Footnote _________________
1 Van Espen. II. t. 9. c. 9.
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Then, in a work which is deemed a great authority among the fathers, I mean Cyprian's letter to the Spanish people, we find it written that no one should “be ordained but in the presence of the people.” Now, why? The reason is given, and it throws light upon the call; for I take the call to be a sort of remnant of this popular presence. The nature of the call is exceedingly ill defined, and its history is admitted on all hands to be very obscure, as far as it ever existed in any thing like a substantive shape, (except at one period, when patronage was avowedly abolished by law;) it is now put down by law, as I shall show in a further part of my argument. But its nature seems to be illustrated by the reason which Cyprian assigns for the presence of the people at ordinations:—
“No one should be ordained,”
(it is rather an advice or a recommendation than a law, or a construction put upon a law,) “no one should be ordained but in the presence of the people, to the end that the demerits of the bad may be disclosed and the merits of the good proclaimed.” An opportunity was to be given for showing whether the life and conversation were good
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Then there is in 493 a rescript of Gelasius, which states that the right of rejection does not exist at all in people; for it expressly says, “if their objections are groundless,” which implies giving a reason, and implies no veto, no dissent; dissent is a mere refusal. But this must have been grounded upon reasons; because he says that those reasons are to be submitted to the clergy, and if groundless the clergy are to remove them by admonition, and thereby to compel an assent. Does not that clearly show, that if the reasons, in the opinion of the clergy, were groundless, the clergy were to proceed as if there had been no dissent; and to deem a dissent founded upon bad reasons, or upon no reasons at all, as of no force at all?
Then in the year 886 Pope Stephen says, referring distinctly to the same subject, “docendus est populus, non sequendus;” 1 a very pontifical doctrine, no doubt, and one which by most pontiffs was very amply and very accurately practised, together with another principle as religiously acted upon, namely, that the flock were to be fleeced as well as taught; that, however, belongs to the papal and, God knows, not at all to the presbyterian church.
_________________ Footnote _________________
1 1 Dec. Dist. 63.
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Now, what says Bœhmer, in a book which is of great authority,—authority in foreign countries as well as among the canonists of our own; I mean his Jus Parochiale? It is cited by one of the learned judges. 1 He says 2, “patrono votum decisivum in electione tribuatur.” Now see the difference between the patron us and the populus:—
“Populo. negativum, ut possint dissentire.”
But how? Not as the Auchterarder people have done, and as the presbytery have allowed them to do, merely to dissent without reason, and with nobody to judge of the reason:—
“Non tamen aliter quam si justas dissensus causas allegare queant.”
They must not only dissent and give their reasons; but their dissent must be grounded upon such just reasons as they “allegare queant,” that is, as they are able truly to allege. Then the question is, who is to decide upon the justice of those reasons? and that question is best answered by coming to the point now in contest between the parties. How has the Scotch law determined that those reasons shall be examined and decided upon? We are thus led to what is certainly the very pinch of this case, and which, in the view I take of it, makes decisively against the appellants; for I now come to the statute law of Scotland, upon which the whole controversy must ultimately depend. Let us first go to the original act, regulating the presbyterian scheme, the act 1592, chapter 116. After providing for the exercise of the judicial and administrative functions of the various church judicatories in Scotland, it concludes in these words:—
“Ordains all presentations to benefices to be direct to the particular presbyteries in all time coming,
_________________ Footnote _________________
1 Lord Corehouse.
2 Jus Paroch. iii. 1. 18; Jus Eccles. prot iii. sec. 77. & 78.
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So that they were bound and astricted by the force of this statute to admit, and if they did not admit they broke the law; they acted illegally, and were liable to the consequences, civil and other, of disobeying the clear and positive order of a statute to receive and admit whoever was presented by a lay patron, if duly qualified; they were only to judge of his qualification, and if qualified they were bound and astricted, that is, they were ordered by the law, to admit him. It was at their peril, quoad civilem effectum, and also quoad alios effectus, that they refused to obey the positive mandate of the King and the estates of parliament.
At different times doubts were entertained whether the law ought to be continued, and some fluctuations existed even in the practice under it in one or other of the troublous periods of Scotch church history. Nevertheless it was not till the year 1690 that the legislature itself made any even apparent alteration of the statute, there having been an act passed immediately upon the revolution, the act of 1690, chapter 5, which revives, renews, and confirms the act of 1592, with the one exception of that part of it that I have just read relating to patronages, and states that this matter is hereafter to be taken into consideration; and in performance of that promise, and in compliance, as it were, with that legislative notice, came in the same year the 23d chapter, which it is most material, therefore, that I should now bring under the view of your Lordships.
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“Our sovereign Lord and Lady, &c., considering that the power of presenting ministers to vacant churches of late exercised by patrons hath been greatly abused, and is inconvenient to be continued in this realm.”
The sentence has thus gone forth against patrons, and whatever is done after this preamble must be taken to be in execution of this judgment for the offence, namely, the abuse and inconvenience ascribed to the right of patronage; the sentence is neither more nor less than utterly abolishing that right for that cause. Now this is most effectually done; but it is material to consider how it is done, and what is substituted in place of it; because one part of the argument, and the greater part of it, is a falling back from the act of 1711 (the 10th of Anne) upon the act of 1690, in a way and by a process of reasoning which I marvel at,—the more I read the more I wonder at, and upon which I shall presently have to say somewhat to your Lordships. The act proceeds, “that in
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Then the presentation is hereby taken from the patrons, because they have abused it, and because it was found inconvenient; and it is transferred to this new body, the heritors and elders, who are to present to the congregation. If the congregation disapprove, the disapprovers are to do what? to exercise a veto? to give their dissent, as the second article of the condescendence states and the answer to it admits, and as the presbyteries state to be their sole reason for not admitting Mr. Robert Young? No such thing; the “disapprovers” are “to give in their reasons;” just as the canon of 428, just as the canon of 493, just as the rescript of 493, and as Pope Stephen's rescript of 886, and as Bœhmer's authority with respect to these old times states to have been the church law even then. Now what is to be done upon the reasons, and why are they to give them? “To the effect the affair may be cognosced upon by the presbytery of the bounds, at whose judgment and by whose, determination the calling and entry of a particular minister is to be ordered and concluded.”
Now I pray your Lordships to stop here, and to form
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My Lords, keeping the provision of the act of 1690 steadily in view, let us see what next took place. If this had continued the law of the land, if this statute had been left unrepealed, no man could have said that Lord Kinnoull, or any other patron, had the right of presentation. It was abolished; it was avowed to be abolished. The reason of the abolition was given; a transfer was made, and the party was indicated to whom the transfer, as the substitute of the patron, was effected by the act. But if this is true, another thing is equally true, that nothing like the present arrangement, laid down by the general assembly and followed by the presbytery, would have arisen under that law. This argument is something wholly different: it is no presentment to the congregation by the heritors and Kirk Session; it is no refusal upon reasons given in by the congregation; it is no cognoscing and adjudication by the presbytery; but it is a totally different proceeding, invented for the first time in the year of grace 1834, and which at the revolution of 1690 was no more
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“Whereas by the ancient laws and constitutions of that part of Great Britain called Scotland the presenting of ministers to vacant churches did of right belong to the patrons, until by the act of 1690 the presentations were taken from the patrons and given to the heritors and elders of the respective parishes; and in place of the right of presentation the heritors and life-renters of every parish were to pay to the respective patrons a small and inconsiderable sum of money: and whereas by the fifteenth act of the fifth session, and by the thirteenth act of the sixth session, the one
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entitled “An act for encouraging of preachers at vacant churches be-Northforth,” and the other entitled “An act in favour of preachers be-Northforth,” there are several burthens imposed upon vacant stipends, to the prejudice of the patron's right of disposing thereof: and whereas that way of calling ministers has proved inconvenient.”
Here they adopt a very opposite mode of reasoning ab inconvenienti, which, although no argument in construing a statute or expounding a law, is an admirable reason for making a law, or for repealing one already made, and for altering a practice tried by experience, especially as that practice was only twenty-one years old, “and has not only occasioned great heats and divisions amongst those who by the aforesaid act were entitled and authorized to call ministers, but likewise has been a great hardship upon the patrons whose predecessors had founded and endowed those churches, and who have not received payment or satisfaction for their right of patronage from the heritors or life-renters, nor have granted renunciation of their rights on that account.” For these reasons (and stronger can hardly be conceived), first, because an uncompensated violation of private property had been committed,—an interference with a valuable estate without compensation; secondly, because great inconvenience had been occasioned by causing heats and animosities in the exercise of the new right in the new hands, to which it had been transferred from the lawful owners: for these very sufficient reasons the act proceeds immediately to “repeal and make void” the said act of 1690, c.23. concerning patronage.
That act is therefore, by the statute of Anne, completely repealed and abrogated, and it from thenceforward ceased to exist, just as much as if it had never
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“that in all time coming the right of all and every patron or patrons to the presentation of ministers to churches and benefices, and the disposing of the vacant stipends for pious uses within the parish be restored, settled, and confirmed to them, the aforesaid acts or any custom to the contrary in anywise notwithstanding; and that from and after the first day of May 1712 it shall be lawful for her Majesty, her heirs and successors, and for every other person or persons who have right to any patronage, to present a qualified minister or ministers to any church or churches whereof they are patrons which shall at any time after the said first day of May happen to be vacant; and the presbytery of the respective bounds shall and is hereby obliged to receive and admit in the same manner such qualified person or persons, minister or ministers as shall be presented by the respective patrons, as the persons or ministers presented before the making of this act ought to have been admitted.”
Now, if the act had stood without this last proviso as to the manner of inducting, no doubt whatever could have existed in any man's mind upon the state of the law which is to regulate this question; for you would then have had the act of 1690 abrogated altogether; you would have had the right of the heritors and elders to present to the people, and the people to dissent upon reason, and the presbytery to cognosce those reasons, and adjudicate thereupon, entirely repealed, as much as if it had never been bestowed upon the parties. It only existed for twenty-one years, and this act would have
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First, with respect to qualification. I am somewhat surprised to find, in the very able and learned arguments from the bench below, an attempt to show that “qualification” is of such extensive meaning, that within its scope may be brought the whole of the matter at present in dispute, namely, the acceptableness and reception of the party presented by the congregation, as finding favour in their sight. Much ingenuity is displayed by several of those learned judges, for some of whom I have the greatest respect, whose subtlety I know to be unbounded, and the fertility of whose imagination
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But I do not rest my position upon argument alone; I am going to show your Lordships that no such meaning, can possibly by the law of Scotland be given to the word “qualified.” It is a technical word in this question; it is not the word “qualified” used in its general sense, as you talk of a man's qualities, of his capacity, of his abilities, of his merits, which are all general phrases, and none of them technical and defined. The word “qualified” is as much a known word of the law, and has as much a technical sense imposed upon it by the statutes, by the law authorities, by the opinions of commentators, by the dicta of judges, as the word “qualification” has when used to express the right to kill game, or when used to express a right to vote in the election of a member of parliament. It is perfectly technical, and it is an understood technical expression.
I now go to the most venerable of all authorities in the law of Scotland because the most ancient, the Regiam Majestatem; and I am the more induced to resort thereto, that it is brought from a period when the right of patronage was weaker than it has been since, when the rights of advowsons were not understood as thoroughly as they have subsequently been, and before the legislature had ever exercised its discretion upon the subject, or made any enactment touching those rights. I the more go to the Regiam Majestatem for this further reason, that it is of high authority in the English law. At one time it was doubted among legal
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The Regiam Majestatem, buke 1. c. 2. s. 3., has these important words:—
“Ane laick patron sould be ware that quhen ane kirk or vicarage sall happen to vaik,”
(that is, to be vacant,) “that he present thereto ane worthie man qualified.” How? by being acceptable to the people from his eloquence, or from his manner of demeaning himself in society? No such thing,—“qualified in literature, life, and manners” (that is, morals), “within foure months after that he knows the kirk to be vacant, that be the longer delay of the presentation he prejudge nocht himselfe.” The law is assumed as clear, and the only object of this passage is to prescribe the time beyond which the patron's right may lapse. To prevent this it says, let him take care to present within four months. Now what does he do? He is to present a qualified person. How is he to be qualified? In literature, life, and manners. All the qualification, then, imposed upon him which there is the necessity of looking to is this, that the party presented has sufficient literature, a pure life, and godly manners.
The same is the doctrine laid down in all the most venerable commentators; and I do not now quote Bankton, for two reasons; first, because he is much
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“Ane laique patron of ony kirk or benefice vaikand sould present thairto ane qualify it and habil persoune of sufficient literature, honest in life, of gude maneris.”
That exactly corresponds with the words in the Regiam Majestatem, which says, “qualified in literature, life, and manners.”
Therefore I take it to be clearly established by these authorities, and I know of nothing which does not confirm it, in any of the dicta of judges, or the decision either of the ecclesiastical or the municipal courts, that “qualification” is a technical word, meaning sufficiency
_________________ Footnote _________________
1 Balfour's Practicks, p. 501; “Anent advocatioun and patronage of kirkes.”
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Now we will just refer for a moment to some stress that has been put by the learned judges, as well as by others, upon the word “qualification,” from a desire to extend its scope over other things as well as learning and life. The two books of discipline are well known to your Lordships,—Knox's book, first in 1560, and the second book in 1578. Now these authorities, as they have been strangely called, undoubtedly assert an election by the people in so many words; they do not merely touch a right of rejection; they do not confine themselves to veto; they do not mention assent or dissent
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“It pertaineth to the people to every such congregation to elect their minister.”
That is not contended for now; that is claiming for the people a right not merely to reject or to accept, but to choose originally,—to present as patrons to the presbytery. That is the doctrine of this book, but that never was received for law in Scotland; and the first book of discipline is of no legal authority at all. The second book of discipline in like manner says:
“The liberty of election of persons called to ecclesiastical functions, and observed without interruption so long as the kirk was not corrupted by antichrist, we desire to be restored, so that men be not intruded upon any congregation, either by the prince or any other inferior person, without lawful election and the assent of the people over whom the parson is placed, as the practice of the apostolic and primitive kirk and good order craves.”
Now, if I were called to a conflict with the book of discipline upon any point of church discipline, or upon any article of theology, I should, no doubt, feel great anxiety and much distrust of my own opinion; but I do not feel the same anxiety and the same distrust if I conflict with it upon a matter of historical fact,—if I go to issue with it upon a gross violation of historical truth, which I think I am justified in asserting after what I have already read to your Lordships from the history of the church and from the statutory records themselves. Can any man breathing say that an election by the people of their pastor was the practice in all times until antichrist corrupted the church,—until the
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I will next advert to the act of 1567
1, which throws some light upon the subject. Considerably before the time when the second book of discipline denies that patronage ever existed,—before popery came in, the presentation of lay patrons is expressly reserved to the just and ancient patrons in so many words. Now it must be admitted that this enactment was after the first book of discipline in 1560. But the book of discipline in 1578, twelve years after the act of parliament which I am about to read, mis-states the fact in the face of that act of parliament, as grossly as a fact was ever misrepresented
_________________ Footnote _________________
1 Cap. 7.
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“And that the patron present ane qualified person, within six months (after it may come to his knowledge of the decease of him who bruiked the benefice of before,) to the superintendent of thay parts where the benefice lies, or others having commission of the kirk to that effect, otherwise the kirk to have power to dispone the same to ane qualified person for that time; providing that in case the patron present ane person qualified to his understanding, and failing of ane, ane other within the said six months, and the said superintendent or commissioner of the kirk refuses to receive and admit the person presented by the patron as said is, it shall be lesum to the patron to appeal to the superintendent and ministers of that province where the benefice lies, and desire the person presented to be admitted; which if they refuse, to appeal to the general assembly of this haill realm, by whom the cause being decided shall take end as they decern and declare.”
Now it is inferred from this that the matter becomes a question of exclusive ecclesiastical cognizance, and that the decision of the general assembly, the highest church court, is to be final and conclusive upon it by force of the words “take end as they decern.” To be sure the matter is to take end as they decern; but upon what are they to decern, and what is to take end?
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Having disposed, therefore, of the first of the two points which arise upon the statute of Anne, the foundation of the whole question before us, and having shown that the term “qualified” used in that statute does not mean general acceptableness to the congregation (which would be vesting the choice in the congregation, and not in the patron), contrary to the express words of the act, I now come to the second point raised, and by which it is attempted to show that the statute leaves the mode of presentment and induction precisely where it stood before, that is to say, in the interval between the year 1690 and the year 1711. If the argument does not confine itself to those twenty-one years it is nought, it proves absolutely nothing; for if it goes back to the period before 1690 it goes to the state of things under the act in 1592, which says that the presbytery are bound and astricted to receive whatever qualified person the patron shall present. Then those of the learned judges who so construe the statute of Anne hold its meaning to be this: that, desiring to repeal the act of 1690 altogether, because it had been found unjust and inconvenient, and intending to set up in its stead the old established patrimonial rights of the lay patrons, the legislature in its wisdom left things precisely as they were, while the act repealed was in existence; for that is the argument. I confess my astonishment at it; I confess my utter inability to
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What, I ask, does the statute of Anne effect, according to this argument? It reasons in the preamble against the act of 1690, and it leaves the act in force. It professes to repeal the act of 1690, and the whole tenor of the contents of that statute of Anne does repeal that act; and not satisfied with repealing the act of 1690, it sets up patronage by express declaratory words; and yet by a clause at the end it abrogates its own repeal, and sets up the act which it professes to abrogate: that is the argument. It says there shall be no longer any rights enjoyed such as are given by the act of 1690, and then it sets up those rights in full force. It says that the patron's rights shall be restored, and then it destroys that altogether. It says, revive patronage; and the better to revive patronage, it utterly extinguishes it. It says, we are not satisfied with abrogating the rights of the heritors and kirk session and with restoring the right of the patron, but we tell you in affirmative words as well that he has the full right,—that he has not lost that right by the statute we have repealed; and then, to the astonishment of the reader, and of the patron, I should apprehend, who finds himself so dealt with,—to the astonishment of all, it proceeds to tell the patron, you were just where you were before we began our work; for with one hand we set up your right, and with another we pull it down; with the right hand we made the show of giving you back your right, and with the left we take it away for ever. Now, that is the argument upon which this extraordinary construction of the act of 1711 is based. That your Lordships may see that I am not giving an
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“Whereas the presenting of ministers did of right belong to the patrons: and whereas the act of 1690 took it from them and gave it to the heritors and elders: and whereas this act has proved inconvenient: and whereas it is necessary that it should be repealed; it is hereby repealed, and the right of all and every patron is restored, settled, and confirmed; provided nevertheless, that such qualified persons as shall be presented shall be admitted, as the persons or ministers presented before the making of this act ought to have been admitted.”
No doubt this proviso has some meaning; every word in every statute must have a meaning given to it; and who can doubt what the meaning is here? All the ordinary forms and modes of proceeding shall be followed, which are understood to be a presentment by the patron to the presbytery moderating in the call of the presentee; the presbytery receiving objections, and considering them as to qualifications, and admitting, modo solito, the person so by them found qualified, who has by the patron been so presented.
That is what the concluding proviso means. Whether it was necessary or not is another question; for though a legislature is never supposed to use words without a meaning, it is always allowed the privilege of using words not absolutely necessary. But to say that it means that the candidate shall be inducted exactly as if this act of 1690 never had been repealed, is to attribute to the legislature not only great infirmity of purpose, but the grossest blundering that can possibly be imagined; for it would leave the law precisely where it stood before the repeal of the act, the abrogation of
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Now what is meant by “before the making of this act?” It cannot, according to this argument, be before the year 1690, because every body admits that then the old rights of patronage were in force, and that the former statute expressly orders the presbytery to admit every qualified person presented by the patron. Then the argument I am grappling with must needs refer to the state of things during the twenty-one years that elapsed between 1690 and 1711; it must mean this or nothing; it must mean to set up the presentment of the patron to the presbytery, the sustentation by the presbytery of that presentment, the dissent of the congregation without reasons against the presentee signified to the presbytery, holding themselves bound by that dissent, and therefore, and for no other reason, rejecting the patron's presentee. That is the argument. But is that the state of things during the last twenty-one years by the act of 1690? It is as utterly different as any one thing can be different from any other, for the act of 1690 does not prescribe any presentment by the patron to the presbytery; it prescribes a presentment by the heritors and kirk session to the congregation. The act of 1690 does not prescribe a dissent or an assent by the congregation without reasons; it prescribes a statement by the congregation of reasons for or against the presentee. The act of 1690 does not prescribe an absolute binding of the presbytery by the assent or dissent of the people; it prescribes a cognoscing by the presbytery, and an adjudicating by the presbytery upon cognoscing, that is to say, upon examining, those reasons. Consequently two things more completely different than the state of matters as
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But it is said to be a very strained and fanciful construction to import into the act of Queen Anne those words, “as matters stood before 1690.” My Lords,
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These, therefore, are the grounds upon which I have come to the conclusion that the judgment must be affirmed. I wish I could have stated them more shortly. If I had had time to digest my judgment, and, as I usually do, reduce it into writing, I should have spared your time; but it was a choice of evils; because I must either give my judgment at greater length and with less compression than I could have wished, or I must delay giving it; a thing on all accounts to be avoided if possible.
Now, my Lords, although these views satisfy my own
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What they say is this: the patron has a right to present; we sustain that right; but the people have a right to dissent, and to reject the presentee. Now, what is the people's dissent? It is saying, without a reason assigned, that they do not like this man; it is saying that they prefer another; it is saying that they prefer any other; it is saying that they will not have him. What does that mean? Under what general expression would you convey the different meanings which all these particular and detailed forms of expression comprehend? I should think choice, election. Refusal to choose—refusal to elect is at least one half of choice and one half of election; because election consists in selection and in choice affirmatively; it consists negatively in rejection of all others, in refusing to choose all others but its elect. If I select A. I reject B., C., D., &c.; if I reject A. I exercise a negative power of choice; I exercise the right of choosing some other person than A., or of saying to the patron, Z., he shall not choose A.: that is quite certain. I may cover it over by whatever circumlocution I please; I may say
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Now, this illustrates the nonsense of saying that the
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“We do not interfere with the right of patrons; they may choose whom they please; but we tell both parties, both patrons and people, that if any body is chosen by the former whom the latter dislikes the choice shall go for nothing.”
His manly and practical understanding, aye, and the honest nature of his venerable colleague Dr. Erskine, who differed from him toto cœlo upon the question of church patronage, (though their difference never threw any shade across the intercourse of the two friends in private life,) how would his honest mind have received the subterfuge upon which the distinction of the present change is sought to be raised—the paltry subterfuge, that the rights of the patron are preserved, but the veto of the
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Then, my Lords, it is said (to make it still more absurd) that the congregation have a right to say, we do not choose this man; we prefer any other to him; we like him less than any other man that can be mentioned, and therefore we will not have him: and this
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But then it is said that they would not exercise this veto, as it is called (or right of dissent, as it is translated by way of making it more fatal to the argument which rests upon it,) capriciously; they would do it conscienciously, and they would not refuse a man without reasons. My Lords, I do not much understand, and do not at all approve
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Dolus versatur in generalibus is a maxim of the civil law adopted by all our courts, frequently referred to by the judges, no where more frequently than in the Scotch courts, and one which I have oftentimes heard cited both in the general assembly and in the civil courts.
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This I throw out in answer to what may seem an objection, though it was not much relied upon at the bar, to the course of my present argument. It may be said, if the presbytery had only said “We refuse him,” without saying why, nobody could have touched their
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1 5 Rep. 57(b), 58(a).
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Mr. Attorney General.—Yes, my Lord, these are the terms.
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If the general assembly have a power to impose the will of this kind of majority upon the whole parish, have they not equally the power to make a totally different arrangement altogether? Can any one earthly reason be propounded which justifies the present criterion adopted by the assembly, the majority of heads of families
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It is now fit that I should advert to one topic which certainly at first did seem to impose some difficulty upon those who maintained the judgment of the Court below. There is a great difference, it was said, between the location or admission of a minister in Scotland and the admission of a clerk by the ordinary in England, inasmuch as in England the person having the advowson presents his clerk, a person already ordained, to the bishop; whereas in Scotland the presentee is ordained and inducted unico contextu by the presbytery, that presbytery being beyond all doubt the only judge of ordination, with which the municipal court has no right whatever to interfere. Ordination, it was said, is thus mixed up with the induction, and cannot be severed from it. But in the first place we must look to the case before us; the severance here at least is complete. The presbytery do not refuse to ordain; nothing of the kind; they do not say he is not qualified; there is no objection whatever to ordaining him; but they say, though we have no objection to ordain him we do not choose to induct him into the parish of Auchterarder, because the people dissent from receiving him; and this is our only reason. I think that is a sufficient answer to this objection, and I believe I threw it out in the course of the argument.
But there is another answer:—If a person being a probationer is brought before the presbytery for induction
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Another argument was used, which I cannot altogether pass over, as many of the learned judges go very mainly upon it. It was said, is a call of no avail? does it mean nothing? Have all the people of Scotland,—all the lawyers and all the divines of the church courts, been hallucinating for so many years, when they have held a call to be necessary as part of the induction, and that the moderating in a call is the proper function of the presbytery? I by no means say that a call is nothing; but I only say it is not every thing; I deny that it is decisive; I refuse it the virtue which others ascribe to it. In the first place, it is admitted on all hands that nothing can well be conceived more obscure and involved in more doubt than the whole history of calls in Scotland. At one time there was a call most effectually, namely, during the interval between 1690 and the year 1711, because during that period the kirk session and the heritors presented to the congregation, and if the congregation did not call the presentee no further step could take place; only it is to be observed that was a call of a very peculiar nature, and wholly different from the one now contended for. The power to refuse or give a call was of a very limited kind, for the people could not refuse giving the call unless they assigned reasons, and the presbytery were to judge of those reasons. But was there ever any period in the history of Scotland in which it was held, either practically or by law, that the congregation was by a majority of voices to call a person, and that if they did not by such majority call him, nothing could be done in his favour? I know very well that there are two authorities in favour of it. The first Book of Discipline in 1560, and the second Book of Discipline in 1578; for
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But whatever was at any one time the force or validity of the call, the statute of Anne does away with it altogether, unless in a modified way and to the very limited extent, that of somewhat more and not much more than a mere ceremony, to which extent only it has been limited ever since that time. The best proof of this is, first of all, this act of 1834, making, for the first time, a majority necessary, and pointing out of whom that majority shall consist; and in the second place, the avowed fact on all hands that the call might have been made by any two or three people in a parish of two thousand, and that if the presbytery chose to moderate in that call, it was just as valid a proceeding as if it had been made by the majority or by the whole parish. Now, does not that give one a very great misgiving as to the substantial meaning of the call,—as to whether it really means anything or nothing? It can be got rid of by almost any form.
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But what authority is there in favour of a call? No doubt there is the act of assembly of 1782, to which reference is made by Lord Moncreiff; and there is the decision of that venerable body in 1790, highly disapproving of the settlement of a presentee who had no call. For aught I know it may be a great informality; but observe, they did not rescind the settlement on that account. But if he had got in without a presentation, or if he had got in without the presbytery inducting him, or if he had never been ordained, would they have allowed him to continue? No such thing; they would have ousted him from the church, and they would have had another man appointed, according to the laws and formalities of the church. When it is said that the call is a very substantial ceremony, and that it is proved to exist in right and in law, and to be necessary, by the Stirlingshire case in 1790, I think you only prove the reverse by the quotation of that case, inasmuch as it was one where there had been no call of a presentee in any manner of way, where the presentee never had a call from any single person in the parish, and there was no moderation in the call by the presbytery; nevertheless he was held to be validly inducted, and to have a
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My Lords, this throws great light on the subject, and mainly strengthens instead of negativing my argument, for it shows that a call is held by the church court itself to be rather a matter of convenience and a useful form,—if you will an important form, than of the very essence or substance. What then is the call? It is a remnant of the old, obsolete, and repealed right of election. Whether it comes from the period which elapsed from the Revolution to the 10th of Anne, while the act of 1690 was in force, or whether it comes from some mistake of the authority of the two Books of Discipline in the 16th century I need not stop to inquire. The nature of the thing clearly enough appears from the way it has been dealt with. This serves to demonstrate that it has not been held a condition precedent of a valid induction, but that the induction may be valid without that condition being fulfilled; nothing can more clearly indicate its being a mere ceremony or form. I suppose it is convenient and useful that there should be a presentation in form of the person to the congregation as well as to the presbytery. The presbytery
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Now I will take an analogous instance: Mr. Attorney General very properly alluded to the coronation. It is a decent and convenient solemnity to present the sovereign to the people, and the people are supposed to take part in the choice; a part, however, so immaterial that if they were all with one voice to reject, the coronation would be just as good, would go on exactly in the same way, and the rejection or recalcitration of the assembled people would have no more weight than the recalcitration of the champion's horse in Westminster Hall during the festival attending the great solemnity. It is an obsolete right, which has not within the time of known history ever been exercised by any people.
But I will state another instance which is very analogous, the publication of banns. Now both in Scotland and in England a regular marriage requires the publication of banns; in Scotland a marriage may take place by mere words of consent, without any church ceremony whatever, and it is supposed that in England the law was so before the marriage act. But a regular marriage can only be made by publication of banns, and whoever in Scotland does it without is liable to church censure. Now, when the banns are published in England, the object is to ascertain
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It only now remains that I should say something respecting the question of jurisdiction; but I have no doubt whatever upon that. It is asked, “How can the Court of Session interfere in a matter of ecclesiastical cognizance?” Prove to me your position, that this is a matter of ecclesiastical cognizance, by which I mean of exclusive consistorial cognizance; prove to me that this is a question of qualification like the question of sufficiens or minus sufficiens in literatura, and then I say that the Court of Session will be excluded, just as the Court of King's Bench was in Specot's case upon a quare impedit, but which Court did not deem itself to be excluded (and the Common Bench agreed with them) where the return to the quare impedit by the bishop was non idoneus. They would not have been excluded even if the bishop had said schismaticus inveteratus, much less if he had said merely nolo inducere, as the presbytery has here done; but we have here no such question as one of qualification. We have a question of election and nothing else, a veto or dissent set up by the ecclesiastical court; and which, if they had done so in England, would have been ground of prohibition, as an interference with the jurisdiction of the municipal courts in matters temporal; and therefore this argument fails altogether.
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But it is said, the Court of Session may give the civil rights,—the right of stipend, and can do nothing more; yet, it is admitted all the while that the court has no power to give those civil rights, to bestow the temporalities of the church on the pastor, unless he is inducted, so that the non induction was as complete a bar to the civil court giving him the temporalities as if the civil court had been told, you shall not adjudicate upon the matter at all.
Then it is said, you have no means of carrying into effect the decree of the Court of Session, albeit supported by the authority of the House of Lords, which is a decision of parliament in its judicial character, upon the subject. In other words, although you say the presbytery have acted wrong, although you say that their reason for rejecting is of no avail whatever, although you say that the law is contrary to what they have supposed it to be, and although you say, deciding upon the petitory part as well as the declaratory part of the summons (which, however, you are not called upon to do), let the presbytery induct immediately, for it has no grounds for refusing, still it is affirmed that the presbytery may persist in refusing and must prevail.
My Lords, it is indecent to suppose any such case; you might as well suppose that Doctors Commons would refuse to attend to a prohibition from the Court of King's Bench; you might as well suppose that the Court of Session when you remit a cause with orders to alter the judgment would refuse to alter it. Conflict of laws and of courts is by no means unknown here. We have, unfortunately, upon the question of marriage had a conflict dividing the courts of the two countries for upwards of twenty-five years, in which the Court of
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And then may come this question: what is the Court of Session to do upon the petitory part of the summons, supposing that shall be insisted upon? Enough for me to-day to observe that this is not now before us; but suppose it were I should have no fear whatever in dealing with it. I should at once make an order upon the presbytery to admit A. if duly qualified, and to disregard the dissent of the congregation. And, my Lords, why do I say so, and with such confidence? Because I look to the cases; and as these are all to the same effect, there is only one with which I shall trouble your Lordships. None of them bear upon the main question now before
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“That it should be found and declared that the pursuer had a right to the patronage, that he exercised his right as patron within the time prescribed by law, and that the presentation to Mr. Nicolson is valid and effectual, and was offered to the moderator of the presbytery in due time.”
The conflict was this, that the presbytery had chosen one, and they ought to have chosen the other. The Court were called upon to declare “that the presbytery should be decerned and ordained by decree foresaid to give due obedience to the said presentation, and to proceed in the settlement of the said Nicolson,” who was the conflicting, or, as they call him, the competing, presentee, “until the final end and conclusion; or, until the said Nicolson shall be settled in the said church and parish of Unst, it ought and should be found and declared by decree foresaid that the pursuer and the other heritors, life renters, and others liable in stipend to the minister
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Now observe that the cause of this dispute was totally different from the present; it was because Nicolson was the proper man in competition with Gray; but that is perfectly immaterial to the present argument, touching the jurisdiction of the Court of Session. Whatever was the cause of dispute, the presbytery had acted wrong. The presbytery had refused to admit Nicolson; they had admitted Gray. What does the Court of Session say? Admit our man Nicolson, and oust your man Gray. Why was it not said in that case, as has been said here, this is nonsense, this is incompetent; you have mistaken your way; the Court of Session has no power; because, when the Court of Session declares that Nicolson has the right, the presbytery will continue to keep in Gray, and then what can you do? And so would arise in that case of Zetland every one of the arguments with which an attempt has been made to scare your Lordships from putting a proper construction upon the act of parliament, and from doing your duty in this appeal; namely, can you have letters of horning against a whole presbytery? Can you proceed against a whole body of clergymen? Can you bring an action of damages against a whole body of men? That is the argument with which we have been harassed and threatened at the bar if we here affirm the judgment of the court below. Why was not that argument used in the case I have just mentioned to
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These are the grounds upon which I hold that it is expedient and just, and therefore necessary, for your Lordships to affirm the judgment of the Court below. I find that I have gone at much greater length in point of time into this case than was at all desirable; but when I consider the great interest which it has excited, and, moreover, when I observe that I look upon it as so much more clear than many have considered it, who have dealt with it below, I do not regret that I have pursued this course.
My Lords, no person would lament more deeply than myself if the judgment which I am now about to move should give offence to that most venerable body, the general assembly, as representing the church of Scotland. I have the most profound veneration for that establishment, and it is hereditary in me as well as personal. I am myself sprung from some of the most venerable and most learned members of that establishment; sprung directly from them, as well as knit to them by collateral connexion. I cannot be indifferent to its welfare or deaf to its claims, or in the slightest degree prepared to
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My Lords, I am not the only person engaged in this discussion before your Lordships house who is connected with the church of Scotland, and who is imbued, I know, with those joint feelings towards it. The learned Attorney General is himself descended from a most venerable pastor of that establishment; and I know, because nothing could more clearly indicate it than the whole course of his argument, and all the observations which fell from him, that he is most scrupulously and delicately averse to any thing which could betoken the slightest want of respect for it, as much so as I am myself. I say this the rather because I have been not a little astonished, in my correspondence with Scotland, to find that something which fell from him had been so grossly misrepresented or misunderstood as to make it fit that I should authoritatively, and as a witness present during the whole argument, contradict it, as utterly unfounded in point of fact. Nothing could be more perfectly respectful and affectionate towards that body than the whole of the argument on the Attorney General's part throughout.
My Lords, I join with him in the deepest sorrow, that anything in this House should pass, to which he has contributed by his argument, and to which I am contributing more effectually by my judgment, with the tendency of perpetuating the discord now prevailing in Scotland. That it should ever have begun all must sincerely deplore, but that it should continue is a matter of still greater affliction to every friend of his country. I have declared my inviolable respect for the kirk and general assembly, but any want of respect that I could
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My Lords, I defend the assembly against the arguments and the threats of their advocates. I protest on the part of the assembly as a body of Christian men, of whom the bulk are Christian ministers, against the imputation thus thrown out against them by this course of defending them, and I say that my hopes of them, my confident expectations of what will be their conduct, are wholly the reverse of those prospects thus held out; that it was an injudicious line of argument on their behalf, an argument which I am morally certain would be repudiated and spurned by the assembly itself. My Lords, that assembly will do its duty, will show its
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Ld. Chancellor's Speech, 3d May 1839.
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My Lords, in this case, as in all others of importance, I have thought it the better course to reduce to writing the opinion I have formed, and the reasons upon which it was founded; a course which I am well aware that my noble and learned friend approves, inasmuch as I believe no judge before his time delivered so many written judgments; a course which is productive of the greatest benefit, which the profession have particularly experienced from the judgments of my noble and learned friend; and a practice which I am happy to say has been pretty generally adopted in all the courts of Westminster Hall. My Lords, following this course, I have, after considering all the documents upon the subject, and all the authorities referred to, committed to writing the opinion I have formed, with the reasons upon which it is founded. My Lords, that was accomplished long before I had any communication with my noble and learned friend upon the subject.
Now, in listening to what fell from my noble and learned friend yesterday, I found that very many of the grounds upon which the opinion which I have formed would rest have been anticipated by what was stated yesterday. Under ordinary circumstances I should have
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It has seldom happened that your Lordships have been called upon to adjudicate upon a case of more importance than that now under your consideration. It affects the manner in which ministers are to be appointed to a very large proportion of all the parochial benefices in Scotland, and believing, as I do, that the interests and well being of the people now and hereafter depend much upon the due execution of the most important duties of parish priests, I feel deeply the responsibility which attaches to all those who are called upon to decide upon the manner of their appointment; for although no opinion as to policy ought to influence our judgment, which ought to be founded upon grounds of law only, yet the importance of the judgment to be
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With these feelings I have addressed myself to the consideration of this case. It naturally divides itself into two questions.
First, whether the proceeding of the presbytery of Auchterarder, founded upon the act of the general assembly of the 31st of May 1834, was legal, or an invasion of the rights of the pursuer. And, secondly, whether the interlocutor of the Court of Session appealed from was within its jurisdiction, and such as, under the circumstances of the case, ought to have been pronounced.
In considering the first of these questions, much of the difficulty which has been felt would, I think, be removed if any precise meaning could be affixed to certain terms which have been necessarily introduced into the argument on either side. Both parties agree that the right of presenting the minister belongs to the lay patron, and that the right of judging and of deciding upon his qualification for his office belongs to the church; for such indeed is the substance of the legislative enactments upon the subject. Both these rights must be exercised in the settlement of the minister, but the boundary between these rights,—what belongs to the one and what to the other, is the real question in dispute.
The pursuers allege that the right of presentation entitles the presentee to be admitted into the benefice, unless the church shall, upon examination and trial of the presenteee, find him not qualified.
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The defenders, on the other side, contend, that to the church belongs the right of deciding upon the whole matter of admission, including every consideration which may affect the propriety or impropriety of the presentees becoming ministers of the parish.
What is the extent of the patron's right to present, and what the jurisdiction of the church in judging the qualifications of the presentee? That is the real question: if the acts, upon the true construction of which the whole contest ought to rest, reserve the right to the one and the jurisdiction to the other? Which being so, it necessarily follows that that only can be a true construction of the acts and a proper definition of those terms which preserves this right and this jurisdiction. The boundary between the two must be so fixed that the one must not be permitted to encroach upon, still less to destroy, the other.
If it were safe to refer to the law and practice of England in ascertaining the meaning of those terms, whatever doubt may exist would be speedily solved. It is the undoubted right of the patron here to present, and to insist upon the admission to the benefice of any qualified person, and the jurisdiction of the bishop is confined to deciding upon the qualification, or rather disqualification, of the presentee. But I have felt desirous of avoiding as far as possible any reference to the law and practice of this country, and choose to discuss and decide upon the law and practice and authorities of Scotland alone, even as to the meaning of the terms used; and I think there is not only in the statutes themselves, but in authorities of an earlier date, conclusive proof of the sense in which these terms were understood from the earliest periods, and of the meaning
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That the right of patronage, as it existed before the reformation, though no doubt subject to the jurisdiction of the church as to the qualification of the presentee, was not subject to any limit or restriction from the people or congregation, has not been disputed.
In 1565 the general assembly, in a message to the queen, expressed their opinion as to the meaning of those terms—patronage of the patron, and trial and examination by the church. They say, “Our mind is not that Her Majesty or any other patron should be deprived of their just patronages, but we mean whensoever Her Majesty or any other patron do present any person to a benefice, that the person presented should be tried and examined by the judgment of learned men of the church, such as are the present superintendents; and as the presentation unto the benefice appertains unto the patron, so the collation by law and reason belongs unto the church, and the church should not be defrauded from the collation, no more than the patrons of their presentation; for otherwise, if it be lawful to the patrons to present whom they please without trial or examination, what can abide in the church of God but mere ignorance!”
Balfour 1, who writes in 1566, says, “Ane laique patron of ony kirk or benefice vaikand sould present thairto ane qualify it and habil persoune of sufficient literature, honest in life, and of gude maneris.” At this time, then, all the church asked as against the patron was a right to judge of the qualification of the presentee; that is, of his literature, good life, and manners.
_________________ Footnote _________________
1 Page 501.
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When, therefore, the act of 1567, c.7., ordained that the examination and admission of ministers should be in the power of the kirk then publicly professed within the realm, the presentation of lay patrons always reserved to the just and ancient patrons, and directed that the patron should present one qualified person within six months, otherwise that the kirk should have power to dispone the same to one qualified person for the time, it is clear that the presentation so secured to the lay patron was to be subject only to the trial and examination of the church as to the qualification of the presentee, that is, as to his literature, life, and manners; and that the appeal given by that act to the patron against the refusal of the superintendent to receive and admit the presentee applied only to what had been before the subject of trial and examination, that is, his qualification as to literature, life, and manners.
If such was the extent of the right of patronage, and such the limit of the jurisdiction of the church in the trial and examination of the presentee under the statute of 1567, cap. 7., there will not be much difficulty in tracing those rights and duties through the subsequent statutes.
By the statute 1592, cap. 116., it is ordained “that all presentation to benefices be directed to the particular presbyteries, with full power to give collation thereupon, and to put order to all matters and causes ecclesiastical within their bounds according to the discipline of the kirk; provided the foresaid presbyteries be bound and astricted to receive and admit quhat-sumever qualified minister presented be His Majesty or laick patrones.”
By another statute of the same year 1592, cap. 117., it is ordained, that upon deprivation of a minister the
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There is no allusion in any of these statutes to any authority intervening in the settlement of a minister between the presentation by the patron and the admission by the presbytery of a qualified person, which qualifications were clearly personal; and of which, indeed, the church was to judge, but was bound and astricted to receive and admit any person presented who should be qualified.
There is no allusion in any of these statutes to any election by the parishioners, or to any reference to them for approval or disapproval. The early reformers had struggled for some such power, and in the first Book of Discipline, composed in 1560, and therefore before the act of 1567, and the second Book of Discipline, composed in 1578, and therefore before the two last acts, it is expressly claimed; but the legislature decides against it, and secures to the patron the right of presenting the minister, and to the church the power of rejecting him, but only upon the ground of his not being qualified. Such were the terms and conditions upon which the presbyterian church government was established, and received the sanction of the legislature; but it appears that these terms and conditions were unwillingly submitted to, for, so early after these acts as the year 1596,
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When, therefore, the legislature, notwithstanding this feeling and these attempts on the part of the church, declared that the presbyteries were bound and astricted to receive and admit whatsoever qualified person was presented by the lay patrons, there can be no doubt of the object of the enactment, or of the construction to be put upon the terms used.
The act 1690, cap. 23., which for a time destroyed patronage, recognizes the efficacy with which it had been exercised, and recites that the power of presenting ministers to vacant churches of late exercised by patrons had been greatly abused, and annuls and makes void the said power theretofore exercised by any patron of presenting ministers to any vacant kirk. And to the effect the calling and entering ministers in all time coming may be orderly and regularly performed, it enacts, that the heritors and elders shall propose a person to the congregation, to be approved or disapproved by them. If they disapprove, they are to give their reasons, to the effect the affair may be cognosced by the presbytery, at whose judgment and by whose determination the calling and entry of the minister are to be ordered and concluded. And it enacts, that if application be not made by the elders and heritors to the presbytery, for the call and choice of a minister within six months, the presbytery may proceed to provide the said parish, and plant a minister tanquam jure devoluto; and it provides a certain compensation to
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The act of Anne, c. 12., 1711, is entitled “An act to restore the patrons to their ancient rights of presenting ministers to the churches vacant.” It recites, that by the ancient laws and constitution of Scotland the presenting of ministers to vacant churches did of right belong to the patrons, until by the act of 1698 the presentation was taken from the patrons and given to the heritors and elders; and that that way of calling ministers had proved inconvenient, and had occasioned great heats amongst those who by that act were authorized to call ministers, and had been a great hardship upon the patrons. It then repeals the act of 1690, so far as it relates to the presentation of ministers by heritors and others therein mentioned, and enacts, that in all time coming the right of all and every patron and patrons to the presentation of ministers to churches and benefices be restored and confirmed to them, any act or statute to the contrary notwithstanding; and that it should be lawful for any person who had right of patronage for any church to present a qualified minister, and that the presbytery shall and is hereby obliged to receive and admit such qualified person as the person or minister presented before the making of that act ought to have been admitted.
Such are the legislative provisions upon the subject in contest in this cause,—the right claimed by the pursuers, and the power or duty claimed by the defenders, to belong to them, and to be regulated by the enactments now in force, so far as such enactments support such rights or regulate such powers and duties. Other authorities and other regulations may be resorted to, as
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In making this inquiry, it must be assumed that the presbytery were armed with all the authority which the general assembly could give to them. But if the general assembly had no power to pass the act of 1834, or to authorize the presbytery to follow its directions, the presbytery can derive no protection from it. The question, therefore, is as to the validity and efficacy of the act of 1834, but which properly arises between the patron and the presbytery. There appears, therefore, to be no ground for the objection raised, that the contest is with the general assembly, who are not represented in this cause.
What, then, was the act of the presbytery of which the patron complains? It appears from their proceedings as printed, that the presentation was duly made, and the form being, as I understand, the usual and old accustomed form, is not immaterial. The patron nominates
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This form of presentation appears to me correctly to describe the rights of the patron and the duties of the presbytery as prescribed by the statutes.
This presentation with all the usual papers being laid before the presbytery, they in so far sustained the presentation as to find themselves prepared to appoint a day for moderating in a call to the presentee, and accordingly they appoint a day for that purpose. On the day appointed a call was produced, and signed in the usual manner. The presbytery then gave opportunity for the male heads of families, whose names stood on the roll, to give special objections, or dissents to the admission of the presentee. No special objections were given in, but it appears that a majority of the heads of families whose names appear on the roll dissented.
It was then moved that the presentee's call, being signed only by three persons, was insufficient; upon which a counter-motion was made, that the presbytery refuse to act in terms of the motion, it being incompetent in that stage of the business. Which last motion was carried; not an unimportant circumstance with reference to the argument, that in rejecting the presentee the presbytery were only adjudicating upon the sufficiency of the call.
At a subsequent meeting of the presbytery it was moved and seconded, that in conformity with the sentence
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It appears, therefore, that there never was any adjudication upon the call, but that the presbytery rejected the presentee, because a majority of heads of families whose names appeared upon the roll dissented. It is also clear that such rejection was not in consequence of any adjudication of the presbytery upon the qualification of the presentee; such adjudication can only be made upon the trial; but according to the form adopted the call must be sustained before the trials are proceeded with; and by the article 8. of the act of 1834 the presbytery was to proceed to the trials only in the case of the dissents not being those of a majority of persons on the roll.
Now, if it was the right of the patron under the statutes to present a qualified person, and if the presbytery were obliged to receive and admit such qualified person, which are the words of the statute of Anne, what possible right could the presbytery have to reject a person duly presented without any trial of his qualification, because a majority of the heads of families dissented? There is no such restriction upon the right of patronage and presentation in the statute, but, on the contrary, the right is unfettered and unlimited, except as to the person presented being qualified. Looking, therefore, to the statutes, as giving, or rather as securing and defining, the rights of the patron, it does not appear to me to be a matter of doubt that the presbytery in rejecting the presentee have acted in opposition to the provisions of those statutes, and in violation of the
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In considering these collateral questions I have therefore assumed that, according to the true construction of the statutes, there is thereby reserved to the patron the right of presenting a qualified person, and to the presbytery the right of trying his qualifications and the power of rejecting him if found not to be qualified.
If such be the construction of the statutes, of what purpose can it be to consider the supposed legislative power of the general assembly? For it cannot be contended that there can exist in the general assembly any legislative power to repeal, control, or interfere with enactments of the legislature. So that, even if the subject matter were found to be within the general legislative power of the general assembly, it would be powerless as to such subject matter so far as it is regulated by statute. It would therefore be beyond the powers of the general assembly to interfere with the right of the patron, as secured by statute, by adding to the powers of the presbytery.
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But this legislative power claimed for the general assembly is confined to ecclesiastical matters, and it is insisted that the matter to which the act of 1834 applies is ecclesiastical. Now, although it is clear that if it were so the legislative power of the general assembly would be controlled by the statute, it is worth considering whether the matter in question can be considered as ecclesiastical. It is clear that there is nothing ecclesiastical in the right of presentation; that is a purely civil right; the adjudication upon the qualification of the presentee may be a matter ecclesiastical. But it is the right of presentation, and not the power of adjudication, which is affected by the act of 1834; not the power of adjudication, because that is to be exercised upon the examination and trials which, according to the proceedings of the presbytery in this case, following the directions of the act of 1834, have never been entered upon; but certainly the right of presentation, because, if that right consists in selecting the minister and calling upon the presbytery to admit him if found qualified, and for that purpose to examine and try him, it is a direct interference with that right to say we will not examine the minister presented, and though qualified we will not admit him if any other person or persons, be they who they may, object to him. Is it no infringement of a right to give to others a veto upon the exercise of it? As an argument in favour of the proposition that what the presbytery have done is matter exclusively of ecclesiastical cognizance, it has been contended that the ordination of a minister is part of the proceedings for settling him in the parish, and that the civil courts can, therefore, have no jurisdiction over any part of such proceedings. It is true that the ordination
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But this consideration opens another objection to the act of 1834, as it enables the majority dissenting to interfere as well with the province of the church in ordaining the minister as with the right of the patron to present him. That the act of 1834 does in its operation interfere with the right of presentation is obvious; but it is contended that it does so indirectly only, and merely through the exercise of the ecclesiastical power of adjudication upon the qualifications; of which it is said that being acceptable to the parishioners is one, and that being objectionable to a majority of the heads of families is a disqualification.
I have already observed that the presbytery are deprived
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Another ground upon which the act of 1834 has been justified, and which is recited in it as the foundation of it, is, that it is a fundamental law of the church of Scotland that no person shall be intruded in any congregation contrary to the will of the people; and that the act is only an arrangement to carry that principle into effect. Whether that is or ever was a law of the church of Scotland is perfectly immaterial, if the statutes contain enactments and confer rights inconsistent with any such principle, or with the execution of any such law. The absolute right of patronage, subject only to the rejection of the presentee by the adjudication of the presbytery for want of qualification, which is secured by
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In the message of the general assembly to the Queen' in 1565, there is no allusion to any such principle The first Book of Discipline proposed that if upon open audience the minister be found unobjectionable in doc trine, life, and utterance, the congregation are unreasonable if they reject him, and that they should be compelled by the censure of the church to receive him; and this is not a violent intrusion.
In 1649, when the church enjoyed the patronage, they did not give the congregation the right of dissenting,
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Connected with this supposed law of non-intrusion is another of the arguments in favour of the act of 1834; that it is a regulation of the call, and that as the call is a matter ecclesiastical the church had the power to regulate it. To this the first and obvious answer is, that whether the provisions of the act of 1834 be or be not connected with the call, and whether the call be or be not part of the ecclesiastical function of admission, the general assembly had no right to make, and the presbytery, therefore, had no right to follow, any regulation inconsistent with the right of the patron as secured by the statutes. But it appears to me that there is no ground for connecting these regulations with the call; and that the call itself, whatever may be its origin or meaning, cannot be so used as to interfere with the right of patronage. The call is, in form, merely an invitation and request by the inhabitants subscribing it to the presentee to take upon himself the spiritual charge of the parish, promising to him all due respect, encouragement, and obedience. It is a request not to decline the office to which he has been presented; it implies no power or authority on those
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The term seems first to occur at periods when the early reformers were struggling for the election of ministers. The acts of 1567 and 1592 negatived this claim; but the struggle continued, and at different times subsequently it was attended with success; and in the act of 1690, by which patronage was for a time destroyed, the expression “calling and entering” ministers is used, the calling being apparently put in opposition to presenting; and in the act of 1711, by which patronage was restored, there is no longer any mention of “calling;” but the patron's right to present, and the presbytery's duty to receive and admit a qualified person so presented, are the only acts referred to as incident to filling the vacant churches. The act of 1649 uses the term “call” in the same sense as the act of 1690; it declares the title of a minister valid who upon the suit and calling of the congregation, after due examination of his literature and conversation, shall be admitted by the presbytery, though he have no presentation.
If, then, the call was what the reformers were desirous of substituting for patronage when the latter was finally established by the act of 1711, the call could only be continued as a form; and if before that time it was only to be substituted for the civil right of patronage, why was not the substituted right to be of the same character as the original? Why, if the patronage was a civil right, was the call to be a matter ecclesiastical?
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It appears, indeed, for many years after the act of 1711 the difficulties thrown in the way of the patrons were such that their rights were but sparingly enforced; but it is admitted that in all the latter times the decisions of the assembly have been in favour of the patrons; holding any call to be sufficient, and thereby treating it as a mere form. It is impossible too highly to praise the good sense of those distinguished members of the church, who, seeing that the law was against them, avoided giving offence to their less discreet brethren by preserving the form of the call, but at the
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The second Book of Discipline had declared the obvious truth that patronage and election could not stand together. An effectual call is equally inconsistent with patronage; and the church therefore most properly treated any call as sufficient. I do not, however, think it necessary to express my opinion upon the origin or the effect of the call, except so far as the use of it may interfere with the rights of the patron as secured by statute. With such rights the call in its original form could not have been permitted to interfere; no new regulations inconsistent with those rights can be legal; they can give no authority, from being clothed with the name of a call, from which in form and substance they entirely differ.
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It has been suggested by the highest authority that the act of 1711, in enacting that the presbyteries shall receive and admit the persons presented by the lay patrons, in the same manner as the persons or ministers presented before the making of this act ought to have been admitted, intended to have preserved the form prescribed by the act of 1690, c. 23., for the purpose of enabling the congregation to state objections to the presentee for the consideration of the presbytery, and subject to being overruled by them. If that should be the right construction of the words in the statute of Anne, it would not affect the present question. That part of the provision of the act of 1690 would be consistent with what has been often contended for as a proper course, and what, in form at least, prevails upon ordination in England and in Scotland. It would, in effect, only add to the facilities of the presbytery in judging of the qualifications upon the trials; but it has no resemblance to the provisions of the act of 1834, which, instead of giving an opportunity to the inhabitants to state objections which the presbytery may disregard, enables a majority, by dissenting without any reasons stated, to deprive the presbytery of the power of adjudicating upon the qualifications of the presentee.
It is therefore unnecessary to express any opinion upon this point; but to guard against misapprehension, I will only say that there appear to me to be difficulties to be overcome before this construction of the statute of 1711 can be adopted, of which I have not been able to find any solution. It is sufficient for the present purpose to observe, that if that be the true construction of the act of 1711, the act of 1834 would be equally an invasion of the right of the patron. I cannot, therefore,
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The next subject for consideration is the remedy for this wrong, and before I apply myself to the consideration of the objections which have been made to the proceedings of the Court of Session for this purpose, I must make some observations upon an argument of a more general nature urged on the behalf of the defenders; which, if well founded, would, in effect, give to the general assembly a legislative power uncontrollable even by parliament, and would exhibit a case, I will not say of wrong, as that would be a contradiction in terms, but of a serious deprivation of valuable civil private rights without the possibility of redress.
It is argued, that although the right of presentation belongs to the patron, yet that every thing connected with the admission of the minister after the presentation is by law subject to the jurisdiction and direction of the church; that the general assembly has legislative power to make what regulation it thinks fit upon that subject; and that no complaint can be made of any thing done by the presbytery relative to the admission of ministers, but to the superior ecclesiastical courts, that is, ultimately, to the assembly. The result would necessarily be, that the assembly in its legislative capacity might make laws destructive of the right of patronage, and, having sole jurisdiction over the execution of its own laws by the inferior jurisdictions, no means would exist of questioning the legality of its enactments. This is but a mode
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However extravagant this proposition may appear to be, it is necessarily included in the argument for the defenders. If the presbytery may agree not to receive or to act upon a presentation, because a majority of heads of families dissent, why may they not do so because a majority do not assent at a meeting held for that purpose, which is election, or because a majority of the presbytery do not assent, which is in effect the usurpation attempted in 1596 and 1638? In all these cases the violation and destruction of private civil rights would be effectual, because the only remedy, according to the argument, would be by application to the authors of the wrong. Nothing can be farther from my wishes than to treat lightly the opinions which have been expressed by any of the very learned and able judges
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Those who contend that there is no remedy for the wrong which has been committed in any existing law, suggest that redress can be obtained only by application to parliament. But if the right be already established by statute, and if the wrong consist in a violation of the right so resting upon the authority of parliament, it is not easy to conceive in what manner parliament may be able hereafter with more success to secure the objects of its enactments; certainly not without a more direct and important interference with the powers legislative and judicial claimed by the assembly than the judgment of the Court of Session can be supposed to effect.
It is said, however, that the legislative power claimed for the assembly has itself the authority of parliament as its foundation, because the statute of 1567, c. 7., after giving, to the patron who presents a person qualified to his understanding to the superintendent of the kirk, an appeal to the superintendent of the province, and from him to the general assembly if the person presented be not received and admitted, declares that the cause, being decided by the court of assembly, shall take end as they decern and declare. That which is the subject matter of appeal is to take end by the decision of the general assembly. What that subject matter is appears from the earlier parts of the statute, namely, the examination of the person presented, qualified according to the understanding of the patron. As to his qualification and his subsequent admission, a duty is to be performed after taking the presentee upon his trials, and which can have
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It was urged that many acts of the church have been acquiesced in, in regulating the qualifications of ministers as to education, knowledge, and other matters, and this is true; but all these concern the personal qualifications of the presentee, to be judged of by the presbytery upon the trials, leaving the right of presenting a qualified person untouched. The statutes give to the patron the
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In the Auchtermuchty case 1, in 1733, the presbytery had rejected a person presented by a lawful patron without examination, and were proceeding to admit another; this was affirmed upon appeal to the assembly. The rejected presentee applied to the Court of Session by advocation, that the settlement should be stopped until the right was decided; the Court sisted the proceedings, but the presbytery having proceeded, a petition and complaint were presented against them, when certain of their number appeared at the bar and apologized. The presbytery admitted the person not presented, and the cause having proceeded, an interlocutor was pronounced, “finding that the presbytery, refusing a presentation duly tendered in favour of a qualified minister, against whom there lies no legal objection, and admitting another person, the patron has a right to retain the stipend, and, therefore, finding the reasons of suspension relevant.”
Many of the arguments urged in this case were used in that; but the result was, that before the wrong minister was admitted, the Court of Session acted against the presbytery by sisting their proceedings; but after he was admitted the remedy applied was necessarily confined to the stipend. Under both circumstances the Court exercised its jurisdiction.
In the case of Dunse
2, in 1749, the presbytery, disputing the patron's title, rejected his presentee without
_________________ Footnote _________________
1 Mor. 9909.
2 Mor. 9911.
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In the case of Culross 1, the presbytery rejected the patron's presentee, disputing his title, and settled another minister. The patron instituted proceedings for the stipend and succeeded, but the church being full the presbytery were not made parties, so that this case does not bear much upon the present.
In the case of Lanark 2, in 1752, the Court of Session, finding that the presbytery had admitted the wrong person, adjudged the stipend to the patron of the rejected presentee. In that case also the presbytery were not parties.
But in both the Kiltarlity cases
3, the presbytery were parties. The first was a case of suspension and interdict
_________________ Footnote _________________
1 Mor. 9951.
2 Mor. 9954.
3 1 Sh. & B. 363., or 340 (new edit.), and 2 S. & D. 384., or 341 (new edit.)
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In the second case of Kiltarlity the presbytery, having sustained a presentation, was held to be barred from objecting to it, and refusing to proceed to settle the presentee. This case also affords an answer to an argument much urged on behalf of the presbytery: that, as they had received the presentation, all that remained was purely ecclesiastical, whereas it appears from their proceedings that they avoided sustaining the presentation. They only in so far sustained it as to find themselves competent to appoint a day for moderating in the call; if they had sustained the presentation they would, according to the second Kiltarlity case, have been barred from refusing to proceed to settle the presentee. There has, therefore, been a refusal to sustain the presentation, which brings this case precisely within the others referred to, in which the presbyteries have been parties.
In the case of
Lord Dundas v. the Presbytery of Zetland and Gray
1, the presbytery rejected a presentation of the presentee of the patron, and settled another minister. The court decided in the terms of the declaratory conclusions, which were, that the presbytery
_________________ Footnote _________________
1 Mor. 9972.
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In the cases of the presbytery of Falkirk v. Lord Callander 1, 8th December 1696, the Presbytery of Ayr v. Lord Dundonald the Presbytery of Paisley v. Erskine 2, and the Presbytery of Strathbogie v. Sir Wm. Forbes 3, those were all actions brought by presbyteries against patrons, to have it declared that the right of presentation had devolved to them jure devoluto. It is admitted that if the presbytery assumes the jus devolutum when the patron thinks it has not fallen, he has a remedy in the civil courts, and that in all cases of disputed patronage and of stipend the court has jurisdiction. From these authorities it is clear that the Court of Session has jurisdiction to adjudicate upon the right of patronage, and to correct any infringement of it as against another claiming adversely, and against the presbytery, whether claiming adversely jure devoluto, or simply rejecting without cause the presentee of the patron, as in the cases of Auchtermuchty, of Dunse, of Kiltarlity and Zetland, and the other cases referred to.
It is admitted that the court has jurisdiction as to the stipend after the admission of a minister by wrong. It would be strange if the jurisdiction could be exercised only after the evil had been completed, when the Court has jurisdiction to prevent it;—that it has jurisdiction when a wrong minister is admitted, but not when the right minister is rejected.
It appears to me for these reasons, that in this case a civil right has been violated by the presbytery, and that
_________________ Footnote _________________
1 Mor. 9961.
2 Mor. 9966.
3 Mor. 9972.
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It was much relied upon in the court below, but not so much insisted upon here, that the act of 1834 had not been properly put in issue by the pursuer; the summons states and complains of that which is the real grievance to the pursuer, that which constitutes the injury to his right of patronage, namely, that the presbytery rejected his presentee without trial or taking cognizance of his qualifications, and expressly on the ground of the veto of the parishioners.
The act of 1834 constitutes no part of the pursuers case, and cannot justify the proceedings of the presbytery according to the case made in the summons; and if by law it does justify their proceedings, it is properly left to be brought forward by the defenders who rely upon it as consequential upon the case so stated. The summons prays a declaration of the plaintiff's right, and of the wrong which he alleges has been done to it, and certain specific relief as a remedy or compensation for such alleged wrong. It is not disputed that it is competent for the court upon a summons having petitory conclusions to confine its interlocutor to a declaration of right. That is what the interlocutor appealed from has done. The cases prove that when the presbytery has illegally rejected a presentee, the Court of Session exercises jurisdiction against the presbytery. What relief may ultimately be administered to the patron in that or in any other suit is not now the subject for consideration. If the court has jurisdiction over the subject matter, and over the parties defenders, it is clearly
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The result of the anxious consideration I have given to this case is the conviction, that the presbytery in the course they have pursued have violated and done wrong and injury to the patron's right of presentation, that the Court of Session have jurisdiction to take cognizance of that wrong, and that in the interlocutor they have pronounced there is no departure from the ordinary mode of exercising their jurisdiction, of which the defenders are entitled to complain.
In forming the opinions I have now expressed, I have confined myself to the questions of law which arise upon the pleadings between the parties. Such is the duty which I felt I had to perform as one of the judges of this the highest tribunal in the country. I have in doing this had no regard to the feelings which this controversy has excited in Scotland, and I have not permitted myself to consider the consequences which may follow from the judgment of this House, on whichever side it may be given. But having now discharged the duty of delivering my opinion upon the matter in contest, I may, before I conclude, be permitted to express the high respect I have always felt for the clergy of Scotland. Much as has been said in their praise, am satisfied that they deserve it all; and that the parochial duties are in general performed in a manner the most exemplary and beneficial for the inhabitants.
If there be any feeling in the church still remaining that the exercise of private patronage is detrimental to the well-being of the establishment, and that it tends
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If your Lordships shall concur in the opinions I have expressed, and by your decision inform the clergy of Scotland what the law really is, I cannot doubt but that they will by their conduct and example inculcate the sacred principle of obedience to the law, of respect for the rights and interests of others, and of the sacrifice of private feelings to the performance of a public duty.
I again move your Lordships that the interlocutor appealed from be affirmed.
Ld. Brougham's Speech.
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Judgment affirmed.
Appellant's Authorities.—Thomson's edit, of Scots Acts, vol. ii. p. 534, stat. 1567, c. 3; Book of Kirk, MS. 468, Peterkin's edit. p. 115, 116 MS. 493, 494; stat. 1557, c. 36; Ersk. b. i. tit. iii. sec. 10; stat. 156
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Respondent's Authorities.—Stat. 1592, c. 116; 1690, c. 23; 10 Ann, c. 12; 2d Book of Discipline, c. 3. sec. 4, 6; Directory for Worship, 1645; Ord. of Min., Acts of Assembly, 1649, sec. 2; 5 Geo. 1. c. 29, sec. 9; Stair, b. iv. tit. iii. sec. 47; Bankton, b. ii. tit. viii. sec. 62; Ersk. b. i. tit. v. sec. 16; Dunlop on Patronage, ch. 8, sec. 283; Haddington, 31st July 1680, Mor. 9903; Lady Forbes, Feb. 1762, Mor. 9931; Lord Dundas v. Nicolson, 15th May 1795, Mor. 9972, and Bell's Cases, p. 169; Baillie and others, 28th Feb. 1822, 1 S. & B. 363, or new edit. 340; Presbytery of Inverness, 10th June 1823, 2 S. & D. 384, or new edit. 341; Presbytery of Falkirk, 8th Dec. 1696, Mor. 9961; Paisley, 10th Aug. 1770, Mor. 9966; Strathbogie, 2d Aug. 1776, Mor. 9972, App. voce Patronage, No. 2.——( English.) Specot's Case, 5 Coke Rep. 57 (b), 58 (a), qualified by Heale v. B. of Exeter, Shower's Cases in Parliament, 88; Albany v. B. of St. Asaph, Cro. El. 119; King v. B. of London, 13 East, 419; S. C. 15 East; King v. B. of London, 1 Wils. 11; King v. Mayor of Stratford on Avon, 1 Levinz, 191; 1 Bla. Com. 389 (Coleridge's edit.); Collifatt v. Newcomb, 2 Lord Raym. 1205; King v. Blower, temp. 1st Lord Mansfield, 2 Burr. 1045; 3 Bla. Com. 101, citing 2 Inst. 623; Rex v. Campion, 1 Sid. 14; Regina v. Bailiffs & Burgesses of Ipswich, 2 Lord Raym. 1233; Ashby v. White, 2 Lord Raym. 938; S. C. 14 How. St. Tri. 695; S. C. on Error in House of Lords, 2 Lord Raym. 958.
Solicitors: Spottiswoode and Robertson — Richardson and Connell, Solicitors.